Gregory William Wilson v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia
GREGORY WILLIAM WILSON OPINION BY
v. 	Record No. 2062-95-3 	CHIEF JUDGE NORMAN K. MOON
JULY 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
Charles B. Flannagan, II, Judge
Russell Vern Presley, II (Street, Street,
Street, Scott & Bowman, on briefs), for
appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Gregory William Wilson appeals his convictions of second
degree murder, malicious wounding and two counts of use of a
firearm in the commission of a felony. 	Wilson asserts that the
trial court: (1) erred in failing to find that the Commonwealth
had suppressed exculpatory evidence consisting of the pretrial
statements of Pamela Statzer, Dawn Chapman, and Melissa Wilson;
(2) abused its discretion by failing to require the Commonwealth
to produce before trial or before cross-examination a written
statement used to impeach Melissa Wilson ("Mrs. Wilson"); (3)
erred in refusing Wilson's proposed jury instruction "C" on the
right to arm for self-protection; (4) erred in refusing Wilson's
proposed jury instruction "F" concerning self-defense; and (5)
erred in denying Wilson's motion for a mistrial or in the
alternative a new trial based on the alleged after-discovered

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evidence and witness misconduct.
We hold that: (1) the record does not support a finding that
the undisclosed statements of Statzer, Chapman, and Mrs. Wilson
presented the reasonable probability that, had they been
disclosed to the defense, the result of the trial would have been
different; (2) Wilson failed to properly preserve his argument
that the trial court abused its discretion in refusing to require
the Commonwealth to produce the written statement used to impeach
Mrs. Wilson; (3) Wilson's proposed instruction "C" on the right
to arm for self-protection was properly refused because it was
unsupported by the evidence; (4) Wilson's proposed instruction
"F" was properly refused because it was repetitive of the other
instructions which addressed the same legal principle; and (5)
the trial court did not err in denying Wilson's motion for a
mistrial or in the alternative a new trial because the
after-discovered evidence presented by Wilson did not support a
finding that the new evidence would have produced a different
result at another trial.
Facts
At approximately 11:00 p.m. on January 13, 1995, Wilson and
Emmit Powers arrived at Pamela Statzer's apartment, located at
700 Russell Street in Bristol, Virginia. 	Wilson's estranged wife
and Wilson's three children lived with Statzer and her three
children. 	Wilson and Powers arrived at approximately the same
time that Jeffrey Hawkins, Bradley Moore, and Virginia Dawn

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Chapman came to visit Statzer. 	Wilson spoke with Statzer at the
door for a few moments and then left, explaining that he was
going to get his car and would return to talk with his wife and
children. 	Statzer agreed to permit the visit, provided there was
no "trouble."
Wilson returned fifteen minutes later and joined Statzer,
Mrs. Wilson, Hawkins, Moore, and Chapman, who were in the living
room talking and drinking. 	Another person, James Brock, who had
arrived at Statzer's apartment intoxicated, was asleep on the
floor in the bedroom of Statzer's sons. 	Statzer testified that
after Wilson returned, Hawkins, who was angry with Brock, went to
the bedroom intending to wake him. 	Wilson testified that Hawkins
entered the room and kicked Brock in the head. 	Wilson stated
that he asked Hawkins not to bother Brock and that he and Statzer
convinced Hawkins to leave the room. 	Statzer, Wilson, and
Hawkins then returned to the living room. 	At trial Statzer
testified that she did not see Hawkins kick Brock, but that
Hawkins had stated that he wanted to wake Brock to "settle
something with him." 	Brock testified that he remained asleep
until the police arrived and that consequently, he was unaware of
any of the incidents that occurred during the course of the
evening.
Statzer's and Chapman's testimony regarding the
circumstances surrounding the subsequent events differed from the
version testified to by Wilson and his wife. 	Statzer and Chapman

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stated that Wilson accused Moore of having a weapon and that
Moore, who was very intoxicated, stood and removed several shirts
in order to prove to Wilson that he was unarmed. 	Hawkins
insisted that Moore was unarmed and that Wilson and Hawkins
argued. 	Hawkins eventually shoved Wilson, causing him to fall
backward into a window, breaking the interior pane but not the
exterior storm pane. 	Statzer testified that Wilson was in no
danger of falling out of the window.
Wilson recovered from the fall, and as he did so, pulled a
gun from behind him and shot Hawkins four times in rapid
succession. 	After the first shot, Statzer went to retrieve her
children, and as she got up, she saw Wilson shoot Moore while he
was still seated. 	Statzer also stated that Moore had been so
intoxicated that he could barely stand. 	Moore testified that
because he had consumed so much alcohol on the night that he was
shot, he did not remember being shot or the events preceding the
shooting.
The Wilsons offered a different version of these events.
Wilson testified that he had been shooting debris with a friend
earlier in the day and that he had brought the gun into Statzer's
apartment because he feared it might be stolen from his car.
Wilson and his wife testified that an argument occurred between
Hawkins and Wilson and that Wilson was preparing to leave when
Hawkins grabbed Wilson and threw him toward the window as hard as
possible. 	They stated that after Wilson shot Hawkins, Moore

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stood and was attempting to block Wilson's exit when Wilson shot
him. 	Wilson fled the apartment after the shooting and drove
through a low cinder block wall in front of the apartment as he
sped away.
When the police arrived at Statzer's apartment, they found
Hawkins lying on the living room floor. 	He had been shot in the
face, the neck, the left ear, and the upper abdomen. 	Moore was
also lying on the floor and was calling for help. 	He had been
shot in the right chin, the left shoulder, and the lower back.
The investigating officers took statements from the
witnesses, including a written statement from Mrs. Wilson, a
written statement from Chapman, and two written statements from
Statzer. 	Statzer also gave an additional written statement on
January 19, 1995. 	Wilson's court-appointed private investigator
also took statements from Statzer and Chapman. 	During the course
of interviewing Statzer, the investigator learned that she had
given the two additional statements to the police. 	However, no
effort was made by Wilson to obtain these additional statements.
At trial, Mrs. Wilson's statement was used by the Commonwealth
to impeach her testimony. 	Wilson's counsel objected to the use
of the statement, arguing that the Commonwealth had not shown the
statement to Mrs. Wilson before cross-examining her regarding its
contents.
After the trial, Wilson learned for the first time that
Chapman had made an undisclosed statement. 	In addition, Powers,

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who had testified for the Commonwealth, informed Wilson that
while waiting to testify, he had overheard a conversation between
Chapman and Statzer. 	Statzer allegedly stated that she had not
actually seen the shooting and questioned her ability to testify
to the events in question. 	Chapman allegedly reassured Statzer
and coached her regarding what had happened during the shooting.
Wilson's counsel filed a motion for a mistrial or in the
alternative a new trial, arguing that by withholding the written
statements made by Statzer, Chapman, and Mrs. Wilson, the
Commonwealth had failed to comply with the trial court's May 19,
1995 order requiring the Commonwealth to disclose any exculpatory
evidence. 	Wilson asserted that all four statements contained
exculpatory evidence because each statement "contained
information concerning Hawkins' aggression or provocation which
supported Wilson's theory of self-defense."
At a hearing on Wilson's motion, the trial court reviewed in
camera the undisclosed statements made by Chapman and Statzer.
Although the trial judge found minor inconsistencies between the
statements and the testimony at trial, he concluded that the
differences were not material. 	Regarding the assertion
concerning newly discovered evidence, the trial judge did not
hear live testimony by Powers, and instead, considered a
transcript of Powers' interview with the defense's investigator
and the written statements of the other witnesses. 	Based on his
determination that there were no material differences in

7
Statzer's statements and her trial testimony, the judge found
that there had been no prejudice to Wilson's defense and,
therefore, denied Wilson's motion.

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Exculpatory Evidence
Brady v. Maryland, 373 U.S. 83 (1963), recognizes the
prosecution's duty to disclose to an accused exculpatory evidence
which is material to guilt or punishment. 	"Exculpatory evidence
is material if there is a reasonable probability that the outcome
of the proceeding would have been different had the evidence been
disclosed to the defense. 	A `reasonable probability' is one
which is sufficient to undermine confidence in the outcome of the
proceeding." 	Bowman v. Commonwealth, 248 Va. 130, 133, 445
S.E.2d 110, 112 (1994) (citing United States v. Bagley, 473 U.S.
667, 682 (1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341
S.E.2d 159, 164 (1986)); see also Humes v. Commonwealth, 12 Va.
App. 1140, 1143, 408 S.E.2d 553, 555 (1991).
Here, the trial judge reviewed in camera the pretrial
statements and determined that there were no material
differences. 	The record establishes that the testimony of
Statzer and Chapman was consistent with their pretrial
statements, and consequently that there was no reasonable
probability that the outcome of Wilson's trial would have been
different had the statements been disclosed to the defense before
trial.
Statzer's and Chapman's testimony concerning the sequence of
events during the course of the evening was substantially
identical to their statements and to Wilson's testimony.
Statzer, Chapman, and Wilson testified that Hawkins pushed Wilson

9
before Wilson fired on him. 	They also indicated that the
interior window pane was broken when Wilson fell into the window.
At trial, Statzer and Chapman stated they believed that the push
or shove was "slight." 	Neither Statzer's nor Chapman's
statements indicated that the push was slight. 	Their undisclosed
statements merely indicated that Hawkins had shoved Wilson,
without qualifying the severity of the push.
Wilson's claim that Statzer's pretrial statements
corroborated his statement that Hawkins acted aggressively toward
Brock is unsupported by the record. 	In the undisclosed
statements Statzer told police:
Jeff Hawkins asked where James Brock was. 	I
told him he was asleep in my son's bedroom.
Jeff Hawkins and Greg Wilson walked into the
bedroom and flipped on the light. 	Hawkins
and Wilson began arguing. . . . 	I went
across the room and got Greg and Jeff to come
out of my son's room.
Jeff said where is James Brock. 	I asked why
and said noone is going to bother James cause
he's been asleep a [sic] hour or so in the
boys floor on a sleeping bag. 	So Jeff goes
to the boys room + turned the light on which
Greg was right behind him. 	Greg told Jeff to
not bother James cause he was asleep + my
boys were in there too asleep. 	So I got out
of my chair + talked to them and got them to
come back into the living room.
In the statement which was disclosed to the defense, Statzer
provided details that were in fact more favorable to the defense
than those contained in her undisclosed statements:
Everyone was setting [sic] in the living room
for about 30 minutes, when Jeff asked where
James Brock was and Ms. Statzer said in the
bedroom sleeping in the floor, where her kids

10
were sleeping. 	She (Statzer) said why, Jeff
Hawkins said he was going to hurt James.
[Wilson] told Jeff if he had a problem with
James to settle it later that there were 6
kids in the house.
Similarly, Statzer's statement to the defense investigator was
consistent with her previous statements and more favorable to the
defense than her two undisclosed statements:
Yea, there was one argument. 	Jeff said he
was going to whoop [Brock's] butt. 	Greg got
all bent out about it. 	Before he said it
[blank space] wooden door and I walked up to
[blank space] and turned the light out and me
and my boys [blank space] and Greg came
[blank space] I said No Greg you all come on.
I got them out of there and then they came
back in the living room and everybody said
they were arguing about a tape or something,
but I never heard them arguing about no [sic]
tape.
Statzer's trial testimony was not as favorable as her two
disclosed statements, but both the more favorable undisclosed
statements were available to the defense and could have been used
to impeach Statzer.
Wilson further claimed that Statzer's undisclosed statements
corroborated his assertion that Moore was hostile, that he had
stood up behind Hawkins, and that Wilson shot Moore in
self-defense. 	Statzer testified "that Moore stayed in his chair
the entire evening because he was too drunk," and that "she never
saw Moore do anything aggressive to Wilson or anyone else." 	In
her undisclosed statements, Statzer indicated that "[Moore] was
real drunk and I felt he was going to start arguing also," and
that at the time that Wilson and Hawkins were in her sons'

11
bedroom, that "[w]hen I was standing there with [Wilson] and
[Hawkins], [Moore] got up barely and come by me. 	But I talked
[Moore] into sitting back down." 	At trial Wilson advanced the
theory that Moore had actually stood up behind Hawkins and then
blocked Wilson's exit. 	Nothing contained in Statzer's
undisclosed statements supports this assertion, nor do they
materially contradict her trial testimony. 	Consequently, we
conclude that the record does not support a finding that there
was a reasonable probability that if Statzer's statements had
been disclosed, the outcome of the trial would have been
different.
Regarding Chapman's undisclosed statement, Wilson first
asserted that it would have served to contradict Statzer's
testimony that Moore did nothing aggressive while at Statzer's
apartment. 	The record fails to support this assertion.
Chapman's statement, in relevant part, provided that,
[e]verything went along real fine for a while
until Jeff Hawkins and Greg Wilson got into a
loud argument. 	I saw Brad Moore take off at
least two shirts. 	Brad told Greg, man I
ain't got nothing. 	He repeated again. 	After
this some more words were exchanged between
Jeff Hawkins and Greg Wilson.
Nothing in Chapman's statement supports a finding that Moore was
hostile or aggressive during the altercation between Hawkins and
Wilson. 	Wilson also asserts that Chapman's statement would have
supported Wilson's theory that Hawkins acted aggressively.
However, Chapman testified at trial that an argument occurred and

12
furthermore, the undisclosed statements and testimony of both
Statzer and Chapman are consistent in suggesting that Wilson
caused the argument.
Finally, Wilson also contends that Chapman's statement did
not indicate that Chapman saw Wilson shoot Moore while Moore was
still seated. 	Chapman testified that after Wilson first shot
Hawkins, she fled to get the police, rendering it unlikely that
she would have been able to comment on when or how Moore was
shot. 	Furthermore, even if Statzer's undisclosed statements had
supported Wilson's version of the facts, such evidence would not
have been exculpatory. 	Wilson's argument that he shot Moore
three times because Moore got up from his chair, stood behind
Hawkins, and then blocked Wilson's exit, does not support a
theory of self-defense. 	Accordingly, we hold there is no
reasonable probability of a different outcome had Chapman's
statement been disclosed, and therefore hold that the statement
was not exculpatory.
Mrs. Wilson's undisclosed statement was similar to Wilson's
trial testimony. 	She stated that Hawkins pushed Wilson against
the window and broke it. 	At trial, however, Mrs. Wilson's
testimony contradicted her written statement and consequently,
her statement was used to impeach her. 	Compared with her
testimony at trial, her undisclosed statement was inculpatory not
exculpatory. 	Accordingly, we hold that the record did not
support a finding that a reasonable probability existed that a

13
different outcome would have resulted had the Commonwealth
disclosed Mrs. Wilson's statement.

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Impeachment of Mrs. Wilson
Wilson argues that the trial court erred in not requiring
the Commonwealth, under Code § 19.2-268.1, to produce the
inconsistent writing used to impeach Mrs. Wilson. 	Rule 5A:18
provides that "[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
ruling . . . ." 	McQuinn v. Commonwealth, 20 Va. App. 753, 755,
460 S.E.2d 624, 626 (1995) (en banc). 	Wilson failed to properly
raise the issue at trial, and Rule 5A:18 now bars our
consideration of the matter. 	Wilson also failed to raise the
issue in his petition for appeal, and thus the matter is likewise
barred under Rule 5A:12(c).
Instruction "C" - Right to Arm for Self-protection
"`Both the Commonwealth and the defendant are entitled to
appropriate instructions to the jury of the law applicable to
each version of the case, provided such instructions are based
upon the evidence adduced.'" 	Stewart v. Commonwealth, 10 Va.
App. 563, 570, 394 S.E.2d 509, 514 (1990) (citation omitted).
Here, the trial court refused instruction C, which stated that if
a person reasonably apprehends that another intends to kill him
or seriously injure him, the person "has a right to arm himself
for his own necessary self-protection, and in such case, no
inference of malice can be drawn from the fact that he prepared
for it."

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"An instruction is properly refused when it is unsupported
by the evidence." 	Bennett v. Commonwealth, 8 Va. App. 228, 234,
380 S.E.2d 17, 21 (1989). 	Here, the evidence demonstrated that
Wilson armed himself long before he entered the apartment, argued
with Jeff Hawkins, or possibly could have perceived that Hawkins
intended him harm. 	There was no evidence that Wilson armed
himself in reaction to a threat from Hawkins. 	In fact, Wilson
testified that he brought the gun into Statzer's apartment
because he feared that it would be stolen from his car. 	Thus,
instruction C was inapplicable to the facts of the case, and the
trial court did not err in refusing it.
Instruction "F" - Self-defense
"When one instruction correctly states the law, the trial
court does not abuse its discretion by refusing multiple
instructions upon the same legal principle." 	Cirios v.
Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164, 170 (1988).
The principles pertaining to self-defense set forth in
instruction F were contained in instructions E and G. 	The only
information contained in instruction F not included in either
instruction E or G was characterization of one of the alternative
verdicts as "excusable" homicide. 	Specific use of the term
"excusable" was not required, however, as the underlying concepts
were clearly and fairly presented in the other instructions.
Therefore, the trial court did not err in refusing instruction F
where it granted instructions E and G.

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Newly Discovered Evidence
Four requirements must be met for a new trial to be granted
upon a claim of newly discovered evidence: 	"(1) the evidence was
discovered after trial; (2) it could not have been obtained prior
to trial through the exercise of reasonable diligence; (3) it is
not merely cumulative, corroborative or collateral; and (4) is
material, and as such, should produce an opposite result on the
merits at another trial." 	Mundy v. Commonwealth, 11 Va. App.
461, 480, 390 S.E.2d 525, 535, aff'd on rehearing en banc, 399
S.E.2d 29 (1990), cert. denied, 502 U.S. 840 (1991). 	The burden
is on the proponent of after-discovered evidence to show that all
requirements have been met in order to justify the granting of a
new trial. 	Carter v. Commonwealth, 10 Va. App. 507, 512-13, 393
S.E.2d 639, 642 (1990). 	The granting of such a motion is
addressed to the sound discretion of the trial court and that
decision will not be reversed absent an abuse of discretion.
Mundy, 11 Va. App. at 481, 390 S.E.2d at 536.
After trial, Wilson alleged that Statzer and Chapman
discussed their testimony while secluded in the witness room and
that Chapman coached Statzer as to what testimony she should
give. 	The alleged conversation was overheard by Powers, a
witness called by the Commonwealth. 	A transcript of Powers'
interview with the defense's investigator was attached as an
exhibit to Wilson's motion for a new trial. 	Powers stated that:
It was more like two women sitting here
discussing the whole thing and one of them
[Statzer] saying well I didn't really see

17
anything. 	I had to get up and run grab my
kids, and I was in the kitchen and this that
and the other and I was so messed up I didn't
know where I was. 	And she [Chapman] says
well you know you saw him do this that and
the other. 	And that's basically what it was.
They set there like that for an hour, an
hour and a half with me and my wife both
sitting there listening.
The trial court reviewed in camera Powers' interview,
Statzer's trial testimony, and the written statements Statzer
made shortly after the shootings. 	The court concluded, and the
record demonstrated, that Statzer's statements did not differ
materially from her testimony at trial. 	Thus, there is no
evidence that, even if the conversation between Statzer and
Chapman occurred, Statzer's testimony was affected. 	Because the
record does not support a finding that the after-discovered
evidence would have produced a different result at another trial,
the trial court did not abuse its discretion in denying
appellant's motion for a new trial.
Further, at the hearing on post-trial motions, the trial
court stated that, in light of the exhibits previously filed by
appellant, which included a transcript of Powers' interview, it
was not necessary for appellant to present further evidence. 	The
court said that if Powers possessed information beyond that
contained in the documents, he would be permitted to testify.
Wilson did not object to this procedure and did not call Powers
as a witness.
Wilson argues, however, that the trial court erroneously

18
excluded the testimony of Powers. 	Wilson failed to properly
raise the issue at trial, and Rule 5A:18 bars our consideration
of the matter on appeal.
Holding that the trial court did not err in finding that the
undisclosed written statements did not present the reasonable
probability that, had they been disclosed to the defense, the
result of the trial would have been different, that the trial
court did not err in denying Wilson's motion for a mistrial or in
the alternative a new trial on the basis of newly discovered
evidence, and that the trial did not err in refusing Wilson's
instructions C or F, we affirm.
Affirmed.